Unit 4: ch 2

Question 1

How is an employee defined in the BCEA and the LRA?

Answer 1

An employee is defined as:
(a) Any person, excluding an independent contractor, who works for another person or the State and receives or is entitled to receive remuneration.
(b) Any other person who assists in carrying on or conducting the business of an employer.

Question 2

What distinguishes an employee from an independent contractor?

Answer 2

Labour legislation applies only to employees, not independent contractors. To determine if a worker is an employee or an independent contractor, the common law and court decisions are used, as neither the BCEA nor the LRA defines an independent contractor.

Question 3

Why is it important to establish whether someone is an employee or an independent contractor?

Answer 3

It is important because labour legislation such as the BCEA and LRA is only applicable to employees, not independent contractors.

Question 4

What is the Control Test for determining if someone is an employee?

Answer 4

According to the Control Test, someone is an employee if the employer exercises control over their work. However, this test is less effective for workers who are experts in fields unfamiliar to the employer.

Question 5

What is the Organisation Test?

Answer 5

The Organisation Test suggests that a worker is an employee if they are integrated into the employer’s organisation. Factors like occupying an office or driving a company car are considered, but this test is considered vague and unreliable.

Question 6

What is the Dominant Impression Test?

Answer 6

The Dominant Impression Test balances factors that indicate whether a worker is an employee or an independent contractor. The dominant impression from these factors will determine the nature of the contract. This test is preferred by courts despite criticism for lacking legal principles.

Question 7

What are the three main factors considered by courts in determining if someone is an employee?

Answer 7

• The degree of control exercised by the employer.
• The level of integration of the employee into the employer’s business.
• The economic dependency of the employee on the employer.

Question 8

What are the factors listed in the BCEA and LRA that create a presumption of employment?

Answer 8

• The person works under the control or direction of another.
• Their working hours are controlled by another.
• They have worked at least 40 hours per month for the past three months.
• They work for or supply services to only one person.
• The person is part of an organisation.
• They are economically dependent on the employer.
• They are provided with tools or equipment by the employer.

Question 9

What is the income threshold that excludes workers from the presumption of being an employee under the BCEA and LRA?

Answer 9

Workers earning more than R254,371.67 per year (R21,197.63 per month) are not protected by the presumption of being employees under the BCEA and LRA.

Question 10

What are the three additional categories of employees protected by the 2014 amendments to the LRA?

Answer 10

The 2014 amendments to the LRA extended protection to:
- Fixed-term employees.
- Part-time employees.
- Temporary employment employees.

Question 11

Why was the LRA extended to include these additional categories of employees?

Answer 11

To protect vulnerable groups against exploitation by employers.

Question 12

When does the 2014 amendment to the LRA take effect?

Answer 12

1 April 2024.

Question 13

Who are fixed-term employees?

Answer 13

Employees employed for a fixed term, until the completion of a particular project, or until a future specified event (e.g., seasonal workers, replacement workers, casual workers).

Question 14

What is Section 186(1)(b) of the LRA designed to protect?

Answer 14

It protects fixed-term employees who have a reasonable expectation of contract renewal or permanent employment and are dismissed when this does not occur.

Question 15

What is the maximum duration a fixed-term employee can be employed under Section 198B LRA?

Answer 15

No longer than 3 months, unless the work is of a fixed/limited duration or there is a justifiable reason.

Question 16

What are the justifiable reasons for employing someone on a fixed-term contract longer than 3 months under Section 198B?

Answer 16

• Replacing an employee temporarily absent
• Temporary increase in work volume (up to 12 months)
• Recently graduated student
• Specific project of limited duration
• Non-citizen with a work permit
  Seasonal work
• Public works or job creation scheme
• Externally funded position
• Reached retirement age

Question 17

How should fixed-term employees be treated compared to permanent employees?

Answer 17

They may not be treated less favorably unless there is a justifiable reason for differentiation.

Question 18

What must an employer do if a fixed-term contract lasts longer than 24 months?

Answer 18

Upon expiry, the employer must pay one week’s salary for every completed year of service (unless a collective agreement provides otherwise).

Question 19

What are the conditions where the LRA’s protections for fixed-term employees do not apply?

Answer 19

• Employee earns more than the BCEA threshold (R254,371.67)
• Employer has fewer than 10 employees or fewer than 50 employees if the business has been operating for less than 2 years
• Fixed-term contract is legal in terms of statute, collective agreements, or sectoral determination

Question 20

What must a fixed-term contract include in writing?

Answer 20

The reasons for entering into a fixed-term contract and any renewals or extensions.

Question 21

Who are part-time employees under the LRA?

Answer 21

Employees who work fewer hours than full-time employees and are remunerated based on the time (hours) they work.

Question 22

How must part-time employees be treated compared to full-time employees?

Answer 22

Part-time employees may not be treated less favorably than comparable full-time employees doing the same work unless there is a justifiable reason.

Question 23

What rights must part-time employees receive in terms of opportunities and training?

Answer 23

They must receive the same training and opportunities to apply for vacancies as full-time employees.

Question 24

What indirect unfair discrimination might part-time employees, especially women, face?

Answer 24

Differential treatment may disproportionately affect women (e.g., those working part-time to care for children), constituting indirect unfair discrimination based on gender.

Question 25

What part-time employees are excluded from LRA protections?

Answer 25

• Employees earning more than the BCEA threshold (R254,371.67)
• Employees working for employers with fewer than 10 employees or fewer than 50 employees if the business has been operating for less than 2 years
• Employees working less than 24 hours per month
• Employees in their first 3 months of continuous employment

Question 26

What is the BCEA earnings threshold for exclusion from LRA protection for part-time employees?

Answer 26

R254,371.67 per year.

Question 27

How long must a part-time employee work before they are protected by the LRA?

Answer 27

After 3 months of continuous employment.

Question 28

What is the triangular relationship in temporary employment services?

Answer 28

It involves a service contract between the labour broker and the client, where the labour broker is paid a fee, but the actual service is rendered by an employee who has a contract with the labour broker and is paid by them.

Question 29

What is the primary issue with temporary employment services according to Section 198 LRA?

Answer 29

The labour broker is liable for unfair dismissal, but often devises ways to escape liability by treating employees as independent contractors.

Question 30

What does Section 198A LRA stipulate about temporary services?

Answer 30

If the service is not temporary as defined, the employee will be considered an employee of the client, not the labour broker, and will be entitled to the same rights as other permanent employees.

Question 30

What did the case FMW Admin Services CC v Stander & Ors (2015) warn against?

Answer 30

It warned against abuse of the construction of independent contractors to circumvent the protection afforded by the LRA.

Question 31

What are the general requirements for a valid contract?

Answer 31

1. Consensus (agreement),
2. Legal capacity,
3. Possibility of performance,
4. Legality,
5. Formal requirements.

Question 32

What must parties have to form a valid employment contract?

Answer 32

They must have reached consensus regarding the identity of the parties and the material terms of the contract.

Question 33

What are the legal capacities required for a valid employment contract?

Answer 33

The parties must have legal capacity; insane individuals cannot conclude valid contracts, and minors need guardians’ assistance to acquire duties.

Question 34

What makes an agreement invalid in terms of performability?

Answer 34

An agreement that involves physically impossible tasks is invalid.

Question 35

What type of agreements are considered illegal and unenforceable?

Answer 35

Agreements that involve illegal activities such as selling drugs or committing murder.

Question 36

Are written contracts required for validity?

Answer 36

No, employment contracts do not need to be in writing to be valid, though certain cases may require written contracts by legislation.

Question 37

What are the essential requirements of an employment contract?

Answer 37

1. The employee must make their services available to the employer.
2. The employer must pay the employee.

Question 38

How does the BCEA extend the definition of an employee?

Answer 38

It includes individuals who are not paid, such as family members of the business owner, for protection under the legislation.

Question 39

What is meant by “naturalia” of an employment contract?

Answer 39

Common law duties of an employer and employee that constitute terms of the employment contract by law, even if not agreed upon.

Question 40

What happens if an employee fails in their duty to tender service?

Answer 40

The employee cannot claim wages and may face dismissal for desertion, absenteeism, tardiness, or participating in a strike.

Question 41

What factors determine whether an employer can dismiss an employee for absenteeism?

Answer 41

Nature of the work, disruption caused by absence, employment length, reason for absence, duration, and the disciplinary code.

Question 42

Can an employer terminate a contract if an employee is absent due to illness?

Answer 42

No, the contract is usually suspended until the employee can return, and the employee is entitled to paid sick leave under the BCEA.

Question 43

Can an employee be dismissed for participating in a strike?

Answer 43

Not if the strike is a “protected strike” under the LRA, which prohibits dismissal in such cases.

Question 44

How is employee competence measured in the workplace?

Answer 44

Against the standard of other employees doing the same work, considering training and experience levels.

Question 45

What does the LRA require before dismissing an employee for poor performance?

Answer 45

The employee must first receive evaluation, instruction, training, guidance, and counseling.

Question 46

What is the employee’s duty of good faith towards their employer?

Answer 46

Employees must further their employer’s interests and avoid competing with or working for conflicting employers.

Question 47

What is a clause in restraint of trade?

Answer 47

A contractual clause preventing an employee from competing with the employer after the employment ends, upheld if reasonable.

Question 48

Can an employer dismiss an employee for insolence or disobedience?

Answer 48

Yes, under common law, disobedience and insolence can justify dismissal, but not if the instructions were unsafe or illegal.

Question 49

What constitutes misconduct that justifies dismissal?

Answer 49

Gross dishonesty, willful damage to employer property, endangering others, physical assault, and gross insubordination.

Question 50

What is the employer’s most fundamental duty?

Answer 50

To remunerate the employee for services rendered, which is the foundation of the employment contract.

Question 51

When does an employer have a duty to provide work?

Answer 51

When work is essential for employee training, wages are based on work done, or the employee’s status would suffer if not allowed to work.

Question 52

What is the employer’s duty regarding safe working conditions?

Answer 52

Employers must ensure buildings and machinery are safe and provide adequate training for those working with dangerous equipment.

Question 53

Under what circumstances may employees refuse to work?

Answer 53

If the working conditions are dangerous, employees have the right to refuse work.

Question 54

What does the Occupational Health and Safety Act of 1993 ensure?

Answer 54

It imposes duties on employers to maintain safe working conditions for employees.

Question 55

Under what circumstances will a restraint of trade agreement in a contract be enforceable?

Answer 55

A restraint of trade agreement is enforceable if it is reasonable, in the public interest, and does not unfairly limit an individual’s right to work.

Question 56

When can an employee refuse to comply with an employer’s order that constitutes a unilateral variation of the employment contract?

Answer 56

An employee can refuse if the changes significantly alter their original job or working conditions without their consent. They may seek relief through the CCMA or Labour Court.

Question 57

What are the circumstances under which an employer must provide work to an employee?

Answer 57

The employer has a duty to provide work when the contract implies continuous work, such as for employees paid by commission or who are skilled workers reliant on the opportunity to practice their profession.

Question 58

What is the first requirement for vicarious liability of an employer?

Answer 58

There must be an employer-employee relationship.

Question 59

What is the second requirement for vicarious liability of an employer?

Answer 59

The act of the employee must be unlawful and meet all the requirements for a delict, including an act or omission, unlawfulness, intention or negligence, and damage caused to a third party.

Question 60

What is the third requirement for vicarious liability of an employer?

Answer 60

The act must occur within the scope of the employee’s employment.

Question 61

What steps can an employee take if their employer implements a unilateral change to the terms of employment?

Answer 61

The employee can refer the dispute to the CCMA, require the employer to restore the original terms within 30 days, or go on strike. If striking is not viable, they can enforce the original contract in the Labour or High Court.

Question 62

What constitutes automatically unfair dismissal regarding contract variations?

Answer 62

It is automatically unfair dismissal if an employee is dismissed for refusing to accept a demand related to mutual interest, per section 187(c) of the LRA.

Question 63

When does a fixed-term contract terminate without the need for a reason from the employer?

Answer 63

A fixed-term contract terminates on the agreed date or upon completion of the specific task. However, if the employee reasonably expected renewal, the termination could be regarded as a dismissal.

Question 64

What remedies are available to employers and employees for breach of contract?

Answer 64

Employers can use disciplinary actions, claims for damages, and statutory dispute resolution. Employees can claim damages, reinstatement, or resignation, and pursue remedies like interdicts or statutory dispute resolution.

Question 65

Under what conditions is an employer vicariously liable for an employee’s delict (wrongdoing)?

Answer 65

The employer is liable if the employee’s wrongful act occurs within the scope of their employment, and the act meets all the requirements for a delict, including causation and damage.

Question 66

Can an employer dismiss an employee for refusing to accept additional tasks or relocation if no agreement is reached?

Answer 66

Yes, but the dismissal must be fair. The employer can dismiss on grounds of operational requirements or breach of contract if the refusal is considered misconduct.